January 1995

Additur

Veterans Auto Sales v. Poole
20 Fla. L. Wkly. D95 (5th DCA 1994)

In this case, the court interprets both §768.043, which provides for remittitur and
additur in actions arising out of the operation of a motor vehicle, and §768.74, which
provides for remittitur and additur in any case where the trier of fact finds liability on
the part of the defendant and awards money damages to the plaintiff. The court notes that
§768.74 may give the trial court slightly more discretion, but holds that under either
statute, the court must consider whether the amount is indicative of prejudice, passion or
corruption; whether the trier of fact ignored the evidence or misconceived the merits of
the case; and whether the amount awarded is supported by the evidence such that it could
be adduced in a logical manner by reasonable persons. The court holds that it was error to
grant additur on the small pain and suffering verdict, but not on the economic damages.
The jury had apparently deducted an amount from the hospital bill that had been charged
for removal of organs to be donated, even though the hospital later removed the amount
from the bill.

To the extent that §768.74 gives the court more discretion, it may be an
unconstitutional violation of the right to trial by jury. Judge Harris, in a concurring
opinion, is troubled by this issue and suggests that it be certified to the Supreme Court.
If you have a case involving remittitur under this statute, and you are making a
constitutional argument, you should contact the AFTL amicus committee.

Argument -- Improper

Al-site Corp. v. Della Croce
19 Fla. L. Wkly. D2600 (3d DCA 1994)

This case is disturbing for a couple of reasons. The court reverses a judgment for
plaintiff based on the improper closing argument of plaintiffs counsel, even though
there was no objection. The argument itself is troubling. Among other things, the attorney
called the defendants expert a "jerk" and said that the defendants were
out to "screw" the plaintiff. Also troubling is the reversal despite the lack of
objection.

If the argument was that bad, the defendant should have objected and asked for a
curative instruction. I think there is a trend now of not objecting to really bad
arguments, to set a trap for the opposing lawyer and the judge. If there is an objection a
good judge can nip the truly bad argument in the bud, give a curative instruction, and
moderate the argument so that no reversible error occurs.

Dont get caught in this trap. Its becoming hard to predict what kind of
arguments the court will find to be fundamental error. If youre not sure about an
argument, dont make it, or find another way to say it. Dont get carried away
just because your opponent doesnt object. I believe that this case and cases like it
put a burden on the judge to monitor arguments even when there is no objection.

Attorney Fees

Richardson v. Merkle
19 Fla. L. Wkly. D2543 (2d DCA 1994)

While upholding the award of attorneys fees under §57.105 because there was no record
basis for alleging that the defendants were involved in the alleged torts, the court holds
that no multiplier is permitted in an award of attorneys fees under §57.105.

Remova Pool Fence Co. v. Roth
20 Fla. L. Wkly. D15 (4th DCA 1994)

It was error to award attorneys fees under §57.105 on the basis that one of the
plaintiffs alternative theories was frivolous, where plaintiff prevailed on another
theory it raised.

Civil Rights

Higgs v. Dept. of Corrections
19 Fla. L. Wkly. D2585 (1st DCA 1994)

The court reversed dismissal of a prisoners civil rights suit against a prison
physician for failure to state a cause of action where the complaint contained allegations
from which might be inferred a significant, unexplained delay in providing appropriate
diagnosis and treatment, in spite of the plaintiffs numerous attempts to obtain
medical assistance, ultimately rendering correction of an obvious facial deformity
impossible, as well as allegations that the injuries and need for diagnosis and treatment
were obvious to other physicians months after they occurred. The court holds that all
allegations in the complaint must be assumed to be true.

In holding the civil rights complaint to the same standard as other complaints, the
decision is consistent with the third districts recent decision in Bain v. City
of Hialeah, 19 Fla. L. Wkly. D2336 (3d DCA 1994).

Discovery

B&L Service, Inc. v. Concepcion
19 Fla. L. Wkly. D2559 (4th DCA 1994)

The court grants certiorari and quashes an order requiring employees of the defendant
corporations to disclose their income from and percentage of ownership in the defendant
corporations where the sole purpose of the discovery is to show their bias as witnesses.
The court holds that it is a violation of privacy rights. The court distinguishes cases
allowing such discovery from expert witnesses because, unlike the expert, these witnesses
have not voluntarily agreed to testify in return for payment. See, e.g., Wood v.
Tallahassee Memorial, 593 So.2d 1140 (Fla. 1st DCA), rev. denied, 599 So.2d 1291 (Fla.
1992). Cf. Syken v. Elkins, 19 Fla. L. Wkly. D2109 (3d DCA 1994) (en banc), holding
that such discovery is not even allowed as to expert witnesses. Review of Syken is
pending in the Supreme Court.

However, with respect to an employee who is an active tortfeasor, the information is
discoverable because it relates to the issue of whether he is an employee or an
independent contractor.

Discovery - Expert

State Farm v. Sharp
19 Fla. L. Wkly. D2628 (2d DCA 1994)

The court quashes a discovery order that required the production of medical reports,
with patient names deleted, prepared by a particular doctor, apparently an IME doctor, for
the insurer and a non-party, involving persons other than this plaintiff. See also Crandall
v. Michaud, 603 So.2d 637 (Fla. 4th DCA 1992).

Dismissal -- Failure to Prosecute

Stern v. The Home Depot
19 Fla. L. Wkly. D2511 (4th DCA 1994)

If the plaintiff notices a case for trial and the case is not reached and there is no
record activity during the next year, the case cannot be dismissed for failure to
prosecute. However, if the plaintiff notices the case for trial and subsequently obtains a
continuance, the notice for trial will not preclude dismissal.

Beware of this trap.

Emotional Distress

The Supreme Court has approved new standard instructions on outrageous conduct causing
severe emotional distress. The court notes that its approval of the instruction does not
constitute a ruling on its correctness and does not foreclose requesting alternative or
additional instructions. The instruction does not include any reference to any defenses,
although they are mentioned in the committee comments.

Evidence -- Rebuttal

Sossa v. Newman
20 Fla. L. Wkly. D14 (4th DCA 1994)

The court reversed a defense verdict because the trial judge refused to allow the
plaintiff childs father to testify that the family could not afford for the child to
continue medical treatment. The testimony was offered to rebut the defendants
repeated contention that the plaintiff never returned to any of her medical providers
after she was released from the hospital, and that therefore she was not really seriously
hurt. The defendants opened the door to evidence of the plaintiffs poverty, which is
ordinarily inadmissible.

The trial court also erred in allowing only one medical record to go to the jury room,
where the particular record reinforced the defendants theory of the case and
discredited plaintiffs theory.

Fabre

Newville v. State of Montana
883 P.2d 793 (Mont. 1994)

The Montana Supreme Court has held the Montana comparative fault statute
unconstitutional with respect to procedural problems that were not addressed by the
Florida Supreme Court in Fabre. The court holds that it violates due process to
allow the jury to allocate fault to nonparties, who are not represented, who have settled,
who are immune or who have a defense against the plaintiff, especially without providing
any procedural safeguard for the plaintiff or for the nonparties. The court points out
other jurisdictions that have provided time limits and procedures in the statute for when
the nonparty defense can be raised.

You can get a copy of this opinion from the Academy of Florida Trial Lawyers. The
Academy is suggesting that we all continue to raise the constitutional issue in our
pleadings (as a reply to an affirmative defense), in motions for summary judgment, in
motions in limine to exclude evidence of the negligence of non-parties, at the charge
conference, and in any post trial motion. The Academy wants to provide amicus help at the
appellate level where these issues are properly preserved.

Garnishment

A lump sum payment received in settlement of a claim under a disability insurance
policy is exempt from garnishment. Any disability income benefits, in whatever form, paid
under any policy or contract of life, health, accident or other insurance, are exempt from
garnishment, unless the policy or contract is effected for the benefit of creditors.

Insurance -- Arbitration

The parties to a homeowners policy are bound by the policy provision that any
disagreement as to the amount of the loss must be resolved by an appraisal board, even
though the insureds claimed that the insurer was guilty of fraud or negligence and was
therefore liable for an amount above the limits of the policy. The court finds that the
language of the appraisal clause does not limit itself to determining the amount of loss
under the policy, but refers just to the amount of the loss itself.

Insurance -- Bad Faith

Joining the other districts, the Third District holds that discovery of an
insurers claim and litigation files is not permissible in a third party bad faith
action until the plaintiff in that action has established that the insurer is obligated to
provide coverage under the policy. The court does not discuss whether this has to be by
summary judgment or by a jury.

Insurance -- UM

The Sheriffs Automobile Risk Program is a self-insurance fund authorized by
§768.28(14), Florida Statutes, not an insurance company under §627.727, and therefore
the plaintiff is not entitled to stacking of UM coverage issued by the Program.

Insurance -- Wind Damage

This is a disturbing case for those of us who have clients who suffered losses in the
hurricane, and those who suffered such losses ourselves. The insured had replacement cost
coverage on his property, which was damaged by wind. The company estimated the cost of
repair and replacement of the property, then paid that amount minus the deductible and
also minus an amount it called "depreciation." When the insured finished the
work for less than the amount State Farm had already paid, State Farm refused to pay the
additional amount.

The court reversed a judgment against State Farm. The court held that replacement cost
insurance is designed to cover the difference between what property is actually worth and
what it would cost to rebuild or repair. The liability for replacement cost does not arise
until the repair or replacement has been completed. Moreover, although §627.702(2) would
prohibit the insurance company from withholding payment until the repair work is
completed, that statute only applies to damage caused by fire or lightning; it does not
apply to wind damage.

This looks like a job for the legislature.

The court also held that State Farm did not have to pay the total amount of the
estimate when the job was completed for less.

Interest

§55.03, Florida Statutes

As you know, the legislature has amended this statute to provide that the comptroller
shall set the rate of interest on judgments each year on December 1. The interest rate on
judgments for 1995 has now been established at 8.0%. Dont you wish you could get a
rate like that on money you owe!

Payment by personal check is not sufficient to satisfy a judgment if the check includes
interest only as of the date of delivery, because the judgment creditor is deprived of
interest on the judgment during the period necessary for the check to clear. Therefore,
the judgment creditor did not have to give the judgment debtor a satisfaction of judgment
until they obtained the missing interest.

Interspousal Immunity

Kalisch v. Kalisch
19 Fla. L. Wkly. D2556 (3d DCA 1994)

In Waite v. Waite, 618 So.2d 1360 (Fla. 1993), the Supreme Court abolished the
doctrine of interspousal tort immunity. The Third District now holds that the decision may
retroactively apply to a cause of action that accrued before the decision.

Med Mal

Kukral v. Mekras
20 Fla. L. Wkly D99 (3d DCA 1995)

On rehearing en banc, with four judges dissenting, the Third District reaffirms its
decision affirming dismissal of a medical malpractice action for failure to provide the
verified medical expert opinion with the notice of intent.

This decision may well be in error, since it so badly divided the court, but for now it
is the law. You must provide the verified expert opinion with the notice of intent.

Porter v. Rosenberg
20 Fla. L. Wkly. D135 (4th DCA 1995)

The doctrine of strict liability in tort is not applicable in an action against a
doctor who supplied an allegedly defective breast implant to a patient where the medical
services provided by the doctor could not have been rendered without using the product and
where the predominant purpose of the transaction was the provision of medical services.
The court accuses the plaintiff of trying to circumvent the medical malpractice statute by
claiming that the doctor was only acting in his role as distributor of the product, when
in fact the distribution of the product was incidental to the provision of medical
services.

Offer of Judgment

Valdes v. Perez
19 Fla. L. Wkly. D2478 (3d DCA 1994)

A demand for judgment cannot be treated differently from other settlement negotiations
for purposes of dismissal for failure to prosecute. It constitutes nonrecord activity and
does not constitute good cause for failure to prosecute.

During the litigation with the insurer for property damages, the insurer tendered a
check in satisfaction of the damages. Several days later, it filed an offer of judgment
for the same amount it had already paid. The case went to trial on the issuer of whether
the insurer received notice of loss before suit was filed. The jury decided in the
insurers favor. The trial court awarded fees to the insurer against the insured
under the offer of judgment statute. The court of appeal reversed and held that the
insured could not be charged with "unreasonable rejection" of an offer it
received before being advised that the insurance company would attempt to use it as an
offer of judgment.

Congratulations to Roy Wasson for not letting them get away with this one.

Premises Liability

In a slip and fall case, it was reversible error for the trial court to instruct the
jury that "Owners of a store owe a duty of maintaining the premises in a reasonably
safe condition but are not required to maintain them in such a condition that accidents
could not happen." The court finds the instruction argumentative and confusing, and
that it tended to endorse the defendants defense; and notes that the comment to the
standard jury instruction recommends that no charge be given on "unavoidable
accident."

Privilege -- Attorney - Client

Old Stone Bank v. Farris
19 Fla. L. Wkly. D2511 (4th DCA 1994)

Where a memorandum from a partys attorney is voluntarily disclosed during
litigation, the disclosure does not constitute a waiver of the privilege as to other
similar documents.

Zanardi v. Zanardi
19 Fla. L. Wkly. D2596 (3d DCA 1994)

Welcome to the computer age. Before a party can be required to produce computer
diskettes claimed to be privileged, the trial court must conduct an in camera inspection
of the diskettes. The court does not address what would happen if the courts
computer is not compatible with the partys.

Privilege -- Psychotherapist

Scheff v. Mayo,
19 Fla. L. Wkly. D2479 (3d DCA 1994)

The plaintiff placed her mental condition in issue by claiming damages for mental
anguish in her auto accident. Therefore she cannot invoke the psychotherapist - patient
privilege. This decision appears to conflict with Morowitz v. Vistaview Apts., 18
Fla. L. Wkly. D199 (3d DCA 1993), which held that detailed evidence of the
plaintiffs psychiatric condition was not admissible in her claim arising out of an
accident in which her principal injury was a broken leg.

Yarbrough v. Lewis
19 Fla. L. Wkly D2631 (2d DCA 1994)

In this medical malpractice case, the plaintiff sought discovery of the defendant
doctors participation in an alcohol treatment program. The plaintiff did not allege
that the defendants negligence was a result of drug or alcohol use. The doctor
admitted in his deposition that at the time he was hospitalized for alcoholism he had told
his family, physician associates, office staff and some friends about it, but asserted the
privilege at his deposition regarding the details. The court held that the doctor did not
waive the privilege by disclosing the fact of his treatment to his family, staff and
associates at the time it occurred, to explain his month long absence, where he continued
to assert the privilege during the litigation. The court distinguishes H.J.M., P.A. v.
B.R.C., because in that case the physician specifically disclosed the treatment in his
deposition and provided "part of the information ... prior to first raising his
objection ... "

Product Liability

Answering a question certified from the Eleventh Circuit, the court holds that product
misuse must be analyzed under comparative negligence and is not an absolute bar to a
product liability claim sounding in negligence. This question was really answered in
West v. Caterpillar, 336 So.2d 80 (Fla. 1986), where the court stated that "we
now have comparative negligence, so the defense of contributory negligence is available in
determining the apportionment of the negligence by the manufacturer of the alleged
defective product and the negligent use made thereof by the consumer." Consequently,
product misuse reduces a plaintiffs recovery in proportion to his comparative fault.

The court notes "we have consistently rejected the use of various doctrines as
absolute defenses in negligence cases." Therefore, says the court, while an
interrogatory on the verdict form addressed to comparative negligence is appropriate, an
interrogatory "specifically focusing on product misuse, assumption of risk, or any
other of the various characterizations of a claimants alleged misconduct" is
not.

This case involved a tractor rollover death, allegedly due to a defective rear steering
system. Judge Pariente did an excellent job of explaining the law of strict liability and
failure to warn, in reversing a summary judgment for the defendant.

Judge Pariente points out that strict liability turns on the question of a defective
design which renders a product unreasonably dangerous, and therefore whether it is
"inherently dangerous" does not affect its application.

A product may be defective due to a design defect, a manufacturing defect, or a
defective warning. Therefore, even if the warnings were adequate as a matter of law, or
unnecessary because the defects were obvious, the jury must still decide whether the
design of the rear steering system was defective. With respect to failure to warn, it was
for a jury to decide whether the warning was insufficient because it appeared only in the
instruction manual, and not on the tractor, and because it failed to warn that the
consequences of failing to follow the instructions could be serious injury or death.

With respect to causation, legal cause does not require direct testimony of an
eyewitness or the injured person. It may be established by circumstantial and expert
testimony.

Because the facts were disputed as to whether the manufacturer expected its
distributors to perform pre-delivery inspection, and whether inspection should have been
performed in this case, summary judgment for the distributor was also error.

Liability can only be imposed on a successor corporation if (1) the successor expressly
or impliedly assumes the responsibility of the predecessor; or (2) the transaction is a de
factor merger; or (3) the successor is a mere continuation of the predecessor; or (4) the
transaction is a fraudulent effort to avoid the liabilities of the predecessor.

Congratulations to Claudia Greenberg for winning this one decisively; and to the
court for such a thorough, well-reasoned opinion.

Punitive Damages

Sports Products Inc. v. Inalien
20 Fla. L. Wkly. D13 (4th DCA 1994)

Certifying conflict with the third district, the fourth holds that it does not have
certiorari jurisdiction to review the findings of fact made by the trial judge in
determining whether plaintiffs evidentiary basis for punitive damages was
sufficient. However, the court will grant certiorari to require the trial judge to hold
the hearing and make a factual finding.

Service of Process

Parra v. Raskin
20 Fla. L. Wkly. D7 (3d DCA 1995)

The defense of failure to serve process within 120 days was waived where the defendant
did not raise it in her pre-answer motion to dismiss.

Settlement

Samick Corp. v. Jackson
19 Fla. L. Wkly. D2509 (4th DCA 1994)

The trial court granted the plaintiff a new trial because the defendant asked a former
defendant, an employee of the remaining defendant, whether he had been sued by the
plaintiff, and argued to the jury that this gave the employee a motive to say he did
nothing wrong.

The appellate court held that this was a violation of §768.041 which provides that the
fact of a release or covenant not to sue or dismissal by the court shall not be made known
to the jury.

However, the court remanded to the trial court for a determination of whether it was
harmless. See also, e.g., Ed Ricke & Sons v. Green, 468 So.2d 908 (Fla. 1985)
(improper to ask witness about the fact that he was formerly a defendant).

JFK Medical Center, Inc. v. Price
19 Fla. L. Wkly. S660 (Fla. 1994)

Resolving an issue that has been in conflict in the DCAs for a number of years,
the Supreme Court has finally ruled that a plaintiff who settles with the active
tortfeasor can still proceed against the vicariously liable tortfeasor, even if the active
tortfeasor has been voluntarily dismissed with prejudice pursuant to the settlement. The
dismissal is not the equivalent of an adjudication on the merits for purposes of
collateral estoppel or res judicata. The court overrules, among other cases, Jones v.
Gulf Coast Newspapers, Inc., 595 So.2d 90 (Fla. 2d DCA 1992). To rule otherwise would
be contrary to the public policy encouraging settlements.

In this contribution action, the third party plaintiff alleged that the third party
defendants settlement with the injured plaintiff was in bad faith because the third
party defendant had funds other than his insurance policy with which to pay a judgment. In
other words, the nonsettling tortfeasor was attacking the settlement on the grounds that
the plaintiff should not have settled for the policy limits. The court held that this did
not show bad faith in the settlement, and therefore the settlement was a valid defense to
the contribution claim.

Severance

Hickey v. Pompano K of C, Inc.
19 Fla. L. Wkly. D2563 (4th DCA 1994)

Plaintiffs complaint alleged two slip and fall accidents, and that the first was
a cause of the second. The court held that it was a departure from the essential
requirements of law to sever the cases, and that there would be no adequate remedy by
appeal, and granted certiorari. See Lawrence v. Hethcox, 283 So.2d 41 (Fla. 1973).
The court holds that the risk of inconsistent verdicts is too great since, in separate
trials, each defendant would claim that the other accident caused most or all of the
injuries.

Sovereign Immunity -- Service of Process

Tipton v. Gallagher
19 Fla. L. Wkly. D2620 (5th DCA 1994)

Section 768.28 requires that, when certain governmental entities are sued, the
Department of Insurance must be served in addition to service on the governmental entity.
The Fifth District now holds that the 120 day service rule of Rule 1.070 applies only to
service on the defendant, and not to service on the Department of Insurance. The court
acknowledges conflict with Austin v. Gaylord, 603 So.2d 66 (Fla. 1st DCA 1992),
which holds that the Department of Insurance must be served within 120 days. The first
district has also just held that service must be made on the Department of Insurance
within 120 days. Prison Rehab. Ind. v. Betterson, 20 Fla. L. Wkly. D57 (1st DCA
1994). Until the Supreme Court resolves this conflict, of course, you should serve the
Department of Insurance within 120 days.

Wrongful Death

Cinghina v. Racik
19 Fla. L. Wkly. D2602 (4th DCA 1994)

The decedent was survived by two adult daughters (age 27 and 29). They claimed to be
partly dependent on the deceased and therefore to be survivors under §768.18(1). The
court held that for adult children to recover in a wrongful death case, they must show
dependence by (1) an actual inability to support themselves and (2) actual dependence on
someone else for support and (3) a reasonable expectation of support or reasonable claim
to support from the deceased. The plaintiffs failed to meet this test because they were
physically and mentally able to provide the basic necessities of food, housing and daily
expenses for themselves. The fact that their mother occasionally loaned them money or
helped them out, and their contention that they could not pay all their bills without some
financial support from their mother was not enough.